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Human Rights Watch Presentation to the United States Sentencing Commission

Human Rights Watch welcomes the decision of the United States Sentencing Commission to review once more the federal sentencing structure for cocaine offenses. The public health, social, and economic consequences of the use and sale of cocaine in any form, and crack cocaine in particular, warrant public concern. But they do not justify penal sanctions that are disproportionately harsh and racially discriminatory. They do not justify prison sentences that violate common sense, basic principles of criminal justice, and internationally affirmed human rights.

Related Material

Race and Incarceration in the United States
Human Rights Watch Press Backgrounder, February 22, 2002

Drugs and Human Rights in the United States

In 1995, the Commission urged an equalization of sentences for federal crack and cocaine offenders, realizing crack sentences were unfairly severe and long crack sentences were imposed primarily on minority defendants. Unfortunately, Congress failed to heed its wise counsel. Today, the Commission has another opportunity to remind the country that sentences for crack offenders must be changed. We hope this time Congress will listen.

We urge the Commission to restore proportionality to federal cocaine sentences and to reduce their racially disparate impact by:

1)    Amending the guidelines to lower sentences for low-level crack offenses;

2)    Amending the guidelines to reduce disparities in the sentencing of crack and powder offenses;

3)    Urging Congress to eliminate or dramatically modify the mandatory minimums for crack and powder cocaine.

I. Background

Federal crack offenders face sentences that are uniquely severe compared to other federal drug offenders, drug offenders sentenced under state law and drug offenders convicted in other constitutional democracies. The Commission's statistics reveal that the average federal sentence in 2000 for a street-level dealer of crack is 103.5 months, while the average sentence for a powder cocaine dealer is 55.6 months. The average maximum sentence for persons convicted of drug trafficking felonies under state law in 1998 was 54.5 months.1 Among European countries, the average length of sentences for persons convicted of drug trafficking was 33 months.2

The current sentencing structure for cocaine offenses reflects Congressional choices made in the Anti-Drug Abuse Act of 1986. Congress established five- and ten-year mandatory minimums triggered by specific minimum quantities of cocaine. In what has come to be known as the 100-to-1 quantity ratio, it takes one hundred times as much powder cocaine as crack cocaine. Congress also doubled these mandatory minimums for people with a prior felony conviction. The Sentencing Commission used those drug quantity levels—and the 100-to-1 ratio—to develop sentencing guidelines for the full range of other powder and crack cocaine offenses. In 1988 Congress also made crack cocaine the only substance the simple possession of which triggered a mandatory prison sentence. Under the Anti-Drug Abuse Act of 1988, simple possession of more than 5 grams of crack—an amount that would translate into somewhere between ten and fifty individual doses of crack—is punishable by a minimum of five years in prison. In contrast, simple possession of any quantity of powder cocaine by first time offenders is a misdemeanor punishable by no more than one year in prison.

Supporters of the remarkably harsh sentences for crack offenders insist that crack poses uniquely serious harms compared to other drugs and that long prison sentences are needed to put major traffickers behind bars, offer prosecutors leverage for securing cooperation from offenders, deter prospective offenders, and enhance community safety and well being. Opponents point to an abundance of empirical data showing that the inherent dangers of crack are not dramatically different from those of powder cocaine, and that harsh federal sentences have had little impact on the demand for or the availability of the drug. Instead, the federal sentencing structure has resulted in the incarceration of thousands of low-level offenders, excessively severe sentences for such offenders, marked racial disparities in prison sentences, a staggering growth in federal prison populations, and a waste of public resources.

We believe the facts support the critics. Indeed, the data and arguments marshaled by the Commission in its 1995 report remains the most cogent and powerful case against higher sentences for crack offenders created by the 100-to-1 differential.3 The Commission correctly concluded that there is no empirical or principled basis for subjecting offenders who deal in or possess crack to dramatically higher sentences than offenders who deal in or possess powder cocaine.

II. International Human Rights and Sentencing

International human rights limit a government's exercise of its coercive and penal powers. Those rights are affirmed in the Universal Declaration of Human Rights—the magna carta of international human rights—and fleshed out in several subsequent treaties, including the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), and the Convention on the Elimination of All Forms of Racial Discrimination (CERD).4 The United States is a party to all of these treaties.5 Under the Supremacy Clause in Article VI of the U.S. Constitution, these treaties are part of the “supreme law of the land” and as such are binding on all public officials—including members of the Sentencing Commission. These treaties are not self-executing, and in the absence of implementing legislation, U.S. residents cannot turn to the courts to defend rights acknowledged by the treaties. But officials nonetheless remain obliged to respect those rights as they exercise their public responsibilities.

1. The principle that punishments should not exceed that which is proportionate to the crime reflects three basic human rights precepts: the inherent dignity of the individual, the right to be free of cruel, inhuman or degrading punishment, and the right to liberty:

  • The inherent dignity of all persons is the rock upon which international human rights are built. As the preamble to the ICCPR states, “the equal and inalienable rights of all members of the human family…derive from the inherent dignity of the human person…” Respect for the intrinsic value of the human person imposes fundamental limits on the nature and quantity of punishment. A criminal conviction is not a license for the imposition of arbitrarily severe punishment.

  • The ICCPR and the Convention against Torture prohibit “cruel, inhuman or degrading treatment or punishment.” Excessive punishment falls within this proscription. Imprisonment becomes cruel, inhuman, or degrading if its severity (i.e., length) is greatly disproportionate to the crime for which it has been imposed.

  • The right to liberty also limits the length of sentences. By analogy to U.S. constitutional law, international human rights law requires not just procedural due process, but substantive due process as well. That is, even if all requisite legal procedures have been followed, any deprivation of liberty must nonetheless still conform to principles of equity and justice.

2. The right to be free of racial or ethnic discrimination is firmly embedded in international human rights law. The ICCPR and CERD prohibit unjustified discriminatory practices even if they have been adopted to secure otherwise valid social objectives such as reducing the sale of illicit drugs.

III. Proportionality and Federal Crack Sentences

Prison is an extremely serious punishment—the most coercive and drastic sanction that can be lawfully imposed short of capital punishment.6 Ensuring that prison sentences are proportionate is consequently a particularly important human rights obligation. To be proportionate, a prison sentence: 1) should not exceed the gravity of the offender's specific conduct and his or her personal responsibility and culpability; 2) should be tailored to the conduct of the individual defendant and not reflect penalties for crimes or offensive conduct that offender did not in fact commit. Federal sentences for crack offenders fail to meet these requirements.

1. Harsh sentences disproportionate to offender's conduct

The average prison sentence for crack cocaine offenders is ten years. The Commission's statistics reveal the average sentence in 2000 for a street-level dealer of crack is 103.5 months—almost nine years; a courier's average sentence is even greater, 107.4 months; the average sentence of a body guard, cook, or steerer is 117 months—almost ten years.7 Eighty-five percent of these sentences are served. By way of comparison, the mean maximum state prison sentence is one hundred months for all violent offenses. The estimated time served in state prison for violent offenses is fifty-four months. For burglary, the mean maximum state sentence is fifty-two months, and the estimated time to be served is twenty-four months. 8 As another point of comparison, in Europe the mean prison sentence for homicide is ninety-nine months, for rape sixty-two months and for robbery forty-one months. 9

We are aware of no empirical basis for punishing low-level crack offenses (e.g., the sale of crack to an adult purchaser) with prison sentences that are commensurate with, much less exceed, most crimes of violence. While dramatic hyperbole abounds in public pronouncements about illicit drugs, a sober, impartial assessment of drug sentences in light of the principles of proportionality indicates such high federal sentences for crack offenders cannot be justified.

Generally, a severe punishment is appropriate for conduct that seriously harms, or at least has threatened to harm, important legally protected interests or rights and conduct to which the victim has not consented. So a significant prison term as a sanction for murder seems appropriate. But in the case of retail drug transactions between adults or other low-level drug crimes, the nature and extent of the harm caused by an individual low-level drug offender is surprisingly difficult to identify:

  • The sale of drugs to an adult does not violate a legally protected right of that adult in the way that robbery of his property or assault on his person violates his rights. We are aware of no other significant prison sentences imposed in the U.S. for participating in transactions that do not deprive a person of legally protected interests and that were engaged in knowingly and voluntarily.

  • The repeated, extensive consumption of cocaine—crack as well as powder—is harmful physically and psychologically. But we are aware of no scientific data that shows every use of cocaine causes serious harm, or that all or even most adults who use cocaine cause substantial physical or psychological injury to themselves. Indeed, only about 10 percent of those who use cocaine ever become addicts. Even if each sales transaction is assumed to cause some amount of physiological or psychological harm, it is hard to discern the principled basis for punishing that conduct as though it were the equivalent of inflicting more serious harm by force upon an unconsenting adult.

  • There is deep public concern about the moral injury caused by drug consumption. President Bush commented recently that drugs rob men and women of dignity and character, that they are the enemy of ambition and hope.10 We do not believe, however, that the offense of contributing to these harms justifies years of imprisonment. If having a weak character or lacking ambition is not a crime, how can an act that contributes to such qualities be punished as a serious felony?

  • The adverse social and public health consequences from the use and distribution of crack are the result of hundreds of thousands of individual actions. The contribution of any individual low-level offender to these harms is necessarily negligible. In determining the punishment that is proportional for the street-seller who engages in $20 crack sales, the harm he may have caused should not be conflated with the cumulative impact of countless other people. Severe prison sentences are disproportionate for individuals whose specific conduct in and of itself causes minimal harm, even if those same actions when undertaken by a sufficient number of other individuals results in accumulated public harm.11 They would be proportionate, on the other hand, for drug kingpins—e.g., persons importing large amounts of cocaine into the country.

2. Harsher sentences for crack than powder cocaine not justified by conduct of crack offender

By virtue of the 100-to-1 differential, sentences for crack offenders are far higher than those powder cocaine offenders who engage in the equivalent conduct. The Commission's statistics indicate that the average sentence of a street-level dealer of crack cocaine is approximately double that of powder cocaine dealers, the same with a courier of crack compared to a courier of powder. The sentence for an importer or high-level supplier of crack is three times that of an importer of powder cocaine.

When Congress set mandatory minimum sentences for crack and powder, it had no empirical basis for creating the 100-to-1 ratio. By all accounts, it simply picked the figure out of the air. Certainly, it had relatively little information about crack and much of what it thought it knew was erroneous. We are unaware of any reasoned basis today for retaining sentences for crack offenses that are so much higher than sentences for powder cocaine offenses.

Certainly the difference cannot be justified by any differences inherent in the two substances. They are pharmacologically identical and have similar physiological effects, although the form of ingestion affects the rapidity of the onset of effects and their duration.12 The principle differences between the two forms of cocaine—e.g., use by different socio-economic groups and the greater nuisance and violence accompanying crack distribution—do not reflect any inherent differences in the conduct of the individual crack offender.

Higher penalties for low-income offenders

The uniquely high sentences for crack offenders partially reflect Congress's concern about crack's use in low-income urban neighborhoods. Unlike powder cocaine, which is relatively expensive, crack is produced and sold in small “rocks” that can be bought in small, cheap quantities. While people with financial resources can and do use powder cocaine as well as crack, people with limited funds who want to use cocaine can only afford it in the form of crack. Crack's low price thus contributed to the rapid rise in its use in the 1980s.

Tailoring an individual's punishment to drug pricing does not square with the principle of proportionality. We are troubled by a sentencing structure that as a practical matter keys the severity of a sentence to the affordability of a particular drug. In essence, federal law penalizes the sale of a substance to poor people more than the sale of the equivalent substance to the affluent. It is the equivalent, were alcohol illegal, of imposing higher punishments on the sale of jug wine than on the sale of chateau neuf du pape. Similarly, by dictating far higher sentences for the possession of crack than for the possession of powder, the law penalizes more severely the poor who acquire the affordable form of a drug than the affluent who acquire the same drug in a more expensive form.

Punishment for violent offenses incorporated into sentences for nonviolent offenders

The current federal sentencing structure is crafted as if all crack offenders are violent and powder cocaine offenders are not. There is no argument that the spread of crack was accompanied by serious violence as gangs fought for control of distribution channels in the new market. During the 1980s, the number of homicides grew rapidly in inner cities, and included innocent bystanders among the victims. With the waning of the crack “epidemic” and the settling of distribution systems for crack, the levels of violence have greatly subsided. But even if it continued at previous rates, we do not believe crack offenders who have not engaged in violence should be given sentences set to reflect the violent conduct of others. As discussed above, the proportionality of a punishment must be judged with relation to the actual offense committed by the specific offender being sentenced.

The unfairness of incorporating violence into all crack cocaine sentences is underscored by Commission statistics that reveal that almost 80 percent of federal crack offenders had no weapon involvement in their crime in FY2000. Indeed, 74.5 percent did not even have access to a weapon, and only 2.3 percent brandished, used, or discharged a weapon in the course of committing their drug offense. Commission statistics on weapon involvement for the eight-year period 1992-2000, reveal that even in 1995, the year at which weapon involvement was highest, 70 percent of crack offenders had no weapon involvement. In FY2000, violence was involved in only 6 percent of crack offender cases—only somewhat higher than the figure of 5.3 percent in powder cocaine cases. There was no bodily harm in 88.4 percent of crack cocaine cases—again, a figure roughly equivalent to that in power cocaine cases (91 percent).13

We are not proposing that the Commission (or Congress) close their eyes to the violence that accompanies the distribution of drugs. Use of weapons to commit a drug offense can be considered an aggravating factor that enhances the punishment (although we would prefer that unlawful use or possession of a weapon be charged as a separate crime and proven beyond a reasonable doubt). But the baseline sentences currently set for given quantities of crack should be reduced so that every crack offender is not being sentenced as though he or she directly participated in unlawful violence.

3) Sentences never intended for low-level offenders

In 2000, Commissioner Steer pointed out that Congress had not intended to impose extremely severe prison sentences on low-level crack offenders.14 It believed that a major trafficker (e.g. manufacturer or head of organizations dealing in very large drug quantities) should receive at least a ten-year sentence and a serious trafficker (e.g. manager of substantial retain trade business) should receive at least a five-year sentence. It then specified drug quantities in the Anti-Drug Abuse Act of 1986 that it thought were associated with the different roles in the drug business. Unfortunately, it got the numbers wrong. As the Commission's research has shown, the 5 grams of crack cocaine set by Congress as the trigger for a five-year sentence is not a quantity associated with mid-level or serious traffickers. According to the Commission's data, the median amount of crack cocaine associated with a manager or supervisor is 253 grams of crack.15 Similarly, the 50 grams of crack that triggers the ten-year mandatory minimum is a far cry from the median quantity of 2,962 associated with importers and high-level suppliers of crack cocaine.

Few of the men and women convicted of federal crack offenses are serious or major traffickers. According to Commission data, 77 percent are lower-level offenders: 66.5 percent are street-level dealers; the other 11 percent are lookouts, courtiers, bodyguards, and cooks. Another 5.9 percent are managers and supervisors. Not surprisingly, given their function, the scope of geographic activity for these offenders is quite limited: three quarters of the crack cocaine offenders operated in their neighborhood or on a local level. In other words, less than one-fifth of crack cocaine offenders are the importers, organizers, manufacturers or wholesalers operating on the broad geographic scale on whom Congress intended to impose five- and ten-year mandatory minimums. If we assume, arguendo, that those five- and ten-year sentences would have been proportionate for major organizers, then they are necessarily disproportionately severe for the lower-level offenders on whom they in fact fall.

4) The federal sentencing structure incapable of yielding proportionate sentences

The federal drug sentencing structure combines mandatory minimum sentences by Congress and sentencing guidelines created by the Commission. By its nature, the structure precludes proportional sentences for crack offenders. Mandatory sentences applied to broad classes for criminal conduct can satisfy the principle of proportionality only if the prescribed punishment is proportional to the conduct of every individual falling within the class. The mandatory minimum set by Congress for crack offenses clearly fails that test. Harsh penalties set simply by quantity and type of drug cannot distinguish between different levels of culpability, yet they block judicial efforts to tailor sentences to the individual offender. Under the sentencing scheme created by Congress, minute amounts of drugs can yield major differences in sentences for people who are otherwise similar in conduct and culpability. For example, an amount of .01 grams above 5 grams can mean an extreme of four years in the sentence for someone convicted of first offense simple possession. Mandatory minimums also lump people together of very different levels of culpability. By setting sentences based solely on quantity, they fail to distinguish between different roles in the offense (e.g., peripheral participants or ringleader). Street-level sellers can be charged with quantities that reflect the total of numerous sales. There have been many complaints that law enforcement agents deliberately wait to make arrests until the sales total has increased enough to trigger mandatory minimums. The impact of the failure to key sentences to role is also magnified by conspiracy laws. The Anti-Drug Abuse Act of 1988 made the mandatory minimum penalties applicable to drug offenses also applicable to conspiracies to commit those offenses. Low-level participants in a drug enterprise can be sentenced on the basis of drug quantities handled by the entire undertaking. Whether through accumulated sales or conspiracy laws, a street-level crack seller can face sentences far higher than his role otherwise warrants.

The Commission has crafted sentencing guidelines with mitigating and aggravating factors that adjust the baseline sentence set by drug quantity to better reflect the individual's conduct, role, and culpability. The sentence, however, cannot be reduced below the term mandated by the mandatory minimum legislation. The mandatory minimums trump the Commission's sentencing guidelines. As Commissioner Steer pointed out in his statement before the House Governmental Reform Subcommittee on Criminal Justice in May, 2000:

[F]or the very offenders who, arguably, most warrant proportionally lower sentences (offenders who by guidelines' definitions are the least culpable), mandatory minimums generally operate to block the sentence reflecting mitigating factors. This means that these least culpable offenders may receive the same sentences as their relatively more culpable counterparts.16

Commission data indicates that in 60 percent of cases in which the defendant qualified for a mitigating role reduction under the guidelines, the mandatory minimum trumped the sentence.17

The safety valve provision enacted by Congress provides some relief for offenders otherwise facing mandatory sentences. Higher rates of arrest in the urban areas, in which most crack cocaine arrests are made, have left most crack defendants with criminal records that preclude them from qualifying for the safety valve.

The congressional mandatory minimums have distorted the guidelines. The Commission used the five- and ten-year sentences set by Congress with the corresponding drug quantities as the basic reference points around which it constructed its drug offense guidelines. We recognize and commend the Commission's effort to secure proportionate sentences for individual defendants through various mitigating factors. But the guideline structure cannot ensure proportionate sentences because it is reflected by the excessively severe sentences mandated by Congress.

5) Federal versus state prosecution

The low-level offenders who constitute the bulk of federal crack offenders could have been prosecuted under state laws—and most would have received lower sentences. In 1995, the Commission repeated that only fourteen states distinguish between crack and powder cocaine for sentencing purposes.18 The remaining states did not create statutory sentences distinguishing between crack cocaine and powder cocaine. Only one of the states, North Dakota, used a 100-to-1 quantity ratio for the threshold amounts triggering mandatory minimum penalties. We take no position on the appropriate role of the federal government with regard to counter narcotics activities and drug prosecutions. But it is extremely troubling from a proportionality perspective that the same activity—e.g., selling rocks of crack to consumers—can get very different sentences simply based on whether local or federal prosecutors take the case.

IV. The Racially Discriminatory Impact of Crack Sentences

Available evidence indicates there are more white cocaine offenders than there are black. Yet the Commission's data shows that in 2000, over 84 percent of federal crack defendants were African American, a proportion that did not vary significantly throughout the 1990s.19 Blacks thus bear the brunt of the severe sentences uniquely meted out to crack offenders under the federal sentencing structure. As discussed above, we do not believe the far higher sentences for crack than powder cocaine offenses are justified. The lack of justification takes on added significance in light of the dramatic racial disparities in the imposition of crack sentences. An indefensible sentencing differential becomes unconscionable in light of its racial impact.

Challenges to the crack/powder sentencing differential on equal protection grounds under the U.S. or state constitutions have generally failed because of the absence of proof of discriminatory intent on the part of the lawmakers. International human rights law, however, contains no requirement of discriminatory intent for a finding of racial discrimination.

CERD prohibits racial discrimination, which it defines as conduct that has the “purpose or effect” of restricting rights on the basis of race.20 Laws that are racially neutral on their face will violate CERD if they have an unjustifiable significant disparate impact upon a group distinguished by race even in the absence of racial animus.

CERD thus raises the question of whether the racially disparate impact of the crack sentences is warranted. We believe not. The impact does not reflect racial differences in offending behavior. Rather, it reflects law enforcement practices, practices that, like the sentences themselves, cannot be divorced from underlying racial dynamics prejudicial to African Americans.

1. Crack offending by different racial groups

Available data indicates there are far more white crack offenders than black, even though blacks constitute the great preponderance of persons prosecuted for federal crack offenses. Federal data indicates blacks have a somewhat higher rate of crack use than white.21 Given the much greater size of the white population, there are nonetheless still far more whites (2,870,000) who have ever used—and thus illegally possessed—crack cocaine than blacks (1,040,000).22 As for crack sellers, there is no national data on their racial breakdown. The limited data on drug sellers that does exists nonetheless suggests whites constitute a preponderance of the cocaine selling population. For example, during the period 1991-1993 Substance Abuse and Mental Health Services Administration (SAMHSA) included questions about drug selling in the annual National Household Survey on Drug Abuse (NHSDA) surveys. On average over the three-year period, blacks were 16 percent of the admitted sellers and whites were 82 percent.23 According to research on patterns of drug purchase and use in selected major cities, drug users reported that their main drug sources were sellers of the same racial or ethnic background as they were. A large study conducted in the Miami, Florida metropolitan area of powder and crack cocaine users revealed that over 96 percent of users in each ethnic/racial category were also involved in street-level drug dealing—which would suggest a racial profile of sellers that is comparable to users.24

Most criminal justice analysts who have looked at racial disparities in drug offender arrests and imprisonment believe demographics and law enforcement resource allocation bear principal responsibility for the disparities. Illicit drug use—and presumably sales—are higher in large metropolitan areas where drug law enforcement is also concentrated. Since more blacks, proportionately, live in these areas than whites, black drug offenders are at greater risk of arrest than white offenders. Within urban areas, the major “fronts” in the war on drugs have been low-income minority neighborhoods. In those neighborhoods, drug transactions are more likely to be conducted on the streets, in public, and between strangers, whereas in white neighborhoods—working-class through upper-class—drugs are more likely to be sold indoors, in bars, clubs, and private homes and only to known buyers. Undercover operations, buy and busts, and other law enforcement activities are therefore easier and quicker to undertake in low-income neighborhoods and the likelihood of success much greater. The net result has been that people buying and selling crack and powder cocaine in more affluent neighborhoods are less likely to be arrested than people buying and selling those drugs in poor, primarily minority, urban communities.

But concentration of anti-drug efforts in low-income urban neighborhoods also reflected racial dynamics. Indeed, although crack was the least used of the major illicit drugs in the U.S.—and although more whites used illicit drugs than blacks—the “war on drugs” that began in the 1980s was targeted most notoriously at the possession and sale of crack by blacks. Crack cocaine in black neighborhoods was a lightening rod for a complicated and deep-rooted set of racial, class, political, social, and moral dynamics that resulted in extensive law enforcement activities in those neighborhoods—as well as uniquely severe federal sentences for crack offenders.

2. The racial underpinnings of crack sentences

We do not believe any honest observer of the public response to crack, including federal sentences, can ignore the role of race. Powder cocaine use by white Americans in all social classes increased in the late 1970s and early 1980s. That use, however, did not engender the orgy of media and political attention that arose when smokable cocaine in the form of crack spread throughout low-income minority neighborhoods that were already seen as dangerous and threatening. There is no question that with the spread of crack, inner city minority neighborhoods suffered from the disorder, harassment, and nuisance that accompanied increased drug dealing on the streets, increased crimes by addicts seeking to finance their addiction and violence by competing drug gangs. But the dismay of local residents was far exceeded by the censure, outrage, and concern from outsiders fanned by incessant and sensationalist media stories, by politicians seeking electoral advantage by being “tough on crime,” and by some politicians who were –consciously or otherwise—playing the “race card” in advocating harsh responses to crack. We recognize that many members of Congress and the public sincerely sought to help poor minority communities. But we are convinced the federal solutions they chose—i.e., uniquely harsh sentences and the concomitant underfunding of prevention and treatment alternatives—cannot be divorced from the longstanding public association of racial minorities with crime and drugs.25

All of these and other factors help explain why inner cities were targeted for drug law enforcement, why Congress set higher sentences for crack offenders than for powder cocaine, and why most federal crack defendants are blacks. But they do not offer a justification that can today withstand CERD's anti-discrimination principles.

The Commission cannot change law enforcement practices that target inner city communities. But it can act to eliminate or at least significantly reduce the powder/crack sentencing differential and thereto affirm the principles of justice and equal protection of the laws that should be the bedrock of U.S. law. Absent change, federal crack sentences will continue to deepen the racial fault lines that weaken the country and undermine faith among all races in the fairness of the criminal justice system.

V. Recommendations

The Sentencing Commission should recommend to Congress that mandatory minimums for drug offenses should be eliminated. If they are retained, they should be pegged to the level of the participant in the drug trade. Drug quantity should be designated as one factor to consider in determining the defendant's level of participation in the drug trade.

The Sentencing Commission should also amend its guidelines as follows:

  • Guidelines should be revised to ensure that low-level crack offenders do not receive disproportionately severe sentences. Under the guidelines base sentences should be keyed to role of defendant in drug trade, with aggravating (e.g., use of violence) or mitigating (e.g., providing assistance to law enforcement) factors raising or reducing that sentence as appropriate. If drug quantities continue to play a dominant role in the guidelines, they should be seen as a proxy for the defendant's role in the offense. Where drug quantities are an inaccurate proxy (e.g., where a low-level defendant is charged with a large quantity of drugs because of the impact of conspiracy laws or multiple drug transactions) the guidelines should permit significant downward adjustments in the sentence.

  • Sentences for crack cocaine offenders should be equalized with those for powder cocaine offenders who engage in equivalent conduct. The disparities should be eliminated by increasing the quantities of crack required for given sentence to those required for powder cocaine offenses. The quantities for powder offenders should not be reduced to address the crack/powder sentencing disparity. We are aware of no sound arguments that sentences for powder cocaine offenses are too low. The injustice caused by the arbitrary 100-to-1 ratio should not be cured by an equally arbitrary change to powder cocaine sentences, particularly when the change would be motivated by calculations of political appeal. Politics has already played a pernicious role in federal drug sentencing. The Commission must uphold non-political principled sentencing.

1 Matthew Durose and Patrick Langan, Felony Sentences in State Courts, 1998, Bureau of Justice Statistics, U.S. Department of Justice (1998), Table 3.

2 Martin Killias et al., “Sentencing in Switzerland in 2000,” Overcrowded Times vol. 10, no. 6 (1999), p. 1, 18-19, citing figures from the Council of Europe's 1990 Bulletin d'informacion pénologique, no. 15.

3 United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy, 1995, Washington, D.C., 1995.

4 The United States ratified the ICCPR on June 8, 1992, CAT on October 21, 1994, and CERD on October 21, 1994. See for a list of signatories. For the text of the treaties, see

5 For a more detailed discussion of these issues, see:

Human Rights Watch, "Punishment and Prejudice: Racial Disparities in the War on Drugs," A Human Rights Watch Report, vol. 12, no. 2, May 2000.

Human Rights Watch, “Cruel and Usual: Disproportionate Sentences for New York Drug Offenders,” A Human Rights Watch Report, vol. 9, no. 2, March 1997.

Human Rights Watch, “Race and Drug Law Enforcement in the State of Georgia,” A Human Rights Watch Report, vol. 8, no. 4, July 1996.

6 The public and elected officials all too often overlook the significant hardships of prison. Imprisoned individuals lose their liberty, autonomy, and the free exercise of most rights. They are deprived of their families, friends, jobs, and communities. Their ability to work, plan, and express themselves is severely restricted. In many prisons, life is degrading, demoralizing, dehumanizing, and dangerous: overcrowding and violence threaten inmates' health, safety, privacy, and dignity. Sending a parent or family breadwinner to prison wreaks havoc on the financial and social stability of prisoners' families and harms children's development. Ex-offenders have enormous difficulties finding employment and housing.

7 Data provided by the U.S. Sentencing Commission, February 2002, on file at Human Rights Watch.

8 BJS, Felony Sentences in State Courts, Table 3 and Table 4.

9 Killias, “Sentencing in Switzerland in 2000,” p. 18.

10 President George W. Bush, “Remarks from Bill Signing at CADCA's National Leadership Forum XII.” December 14, 2001. (7 March 2002).

11 Joel Feinberg, Harm to Others (New York: Oxford University Press, 1984).

12 Cocaine and Federal Sentencing Policy, p. 22.

13 United States Sentencing Commission, “Figures 19, 20, 21.” Drug Briefing Presentation. 2002, (7 March, 2002).

14 Commissioner John R. Steer, “Testimony before the Subcommittee on Criminal Justice, Drug Policy and Human Resources.” May 11, 2000. (7 March, 2002).

15 Drug Briefing Presentation, “Figure 18,”

16 Steer Testimony,

17 Ibid.

18 Cocaine and Federal Sentencing Policy, p. 130.

19 Drug Briefing, Table 34, at

20 Art. 1 (1) of CERD states:

In this convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

United Nations, “International Convention on the Elimination of All Forms of Racial Discrimination.” (New York: United Nations, 1965), (12 March, 2002).

21 Office of Applied Studies, “National Household Survey on Drug Abuse, Population Estimates 1998,” National Household Survey on Drug Abuse Series: H-9, (SAMHSA: Washington, D.C., 1998), p. 38-39.

22 Punishment and Prejudice, Table 14.

23Punishment and Prejudice, Table 15.

24 Dorothy Lockwood, Anne E. Pottieger, and James A. Inciardi, “Crack Use, Crime by Crack Users, and Ethnicity,” in Darnel F. Hawkins, ed., Ethnicity, Race and Crime (New York: State University of New York Press, 1995), p. 21.

25 David S. Musto, The American Disease: Origins of Narcotic Control (New York: Oxford University Press, 1999). Also see Michael Tonry, Malign Neglect – Race, Crime and Punishment (New York: Oxford University Press, 1995).